U.S. District Court Decision Rules in Favor of Kemin on Continuation of Patent Infringement Lawsuit against OmniActive

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Decision Strengthens Kemin’s Patent Claim Construction

no traces of toxic chemicals.

Tampa, FL (Vocus)September 30, 2009 -–

The U.S. District Court Middle District of Florida has ruled favorably for Kemin in construing claims for U.S. Patent No. 5,382,714 “Process for Isolation, Purification and Recrystallization of Lutein from Saponified Marigold Oleoresin and Uses Thereof,” a patent that covers Kemin’s FloraGLO® Lutein brand (Case No. 8:07-cv-1308-T-33TGW). The Court construed the patent first before addressing issues raised in a summary judgment motion filed by OmniActive Health Technologies, Inc. (“OmniActive”) in 2008. OmniActive’s motion for summary judgment of noninfringement was denied by the Court in an Order issued today.

The Court agreed with Kemin’s construction on the three issues before the court: the meaning of “lutein” for purposes of measuring lutein purity; the interpretation of the claim terms “substantially pure” and “substantially free from other carotenoids and chemical impurities found in the natural form of lutein in the plant extract;” and the construction of “no traces of toxic chemicals.” With respect to the meaning of lutein, the court agreed that lutein as used in the patent includes all isomers of lutein, not just trans-lutein. When evaluating lutein purity, the Court determined that it should consider the percentage of lutein against the percentage of other carotenoids and specifically rejected OmniActive’s argument that residual plant matter, fatty acids and waxes that are not carotenoids should be considered in the carotenoid composition.

The Court clarified the term “no traces of toxic chemicals” to mean no detectable amounts of any toxic chemicals as measured by a method that would have been used at the time of the invention by a person of ordinary skill in the art. The Court agreed with Kemin that a person of ordinary skill in making purified lutein would use a readily available testing method and was not required to use the “theoretically best available method”—a construction urged by OmniActive. Based on its claim construction the Court denied OmniActive’s motion for summary judgment. A trial in this matter has been scheduled for July of 2010. “We are very pleased with the Court’s well-considered and reasoned decision, which will be the patent claim construction before the jury during the trial,” stated Rodney Ausich, Kemin Health president, in commenting on the Order.

Kemin, producer and marketer of the supplement and food ingredient FloraGLO® Lutein will continue its court case against OmniActive, a subsidiary of Kancor Ingredients Limited of Kerala, India. Kemin argues there is sufficient evidence from which a reasonable jury could find that OmniActive has and continues to infringe one or more of Kemin’s claims under the ‘714 patent by making, using, importing into the United States, and selling or offering for sale purified lutein products under the names Lutemax and Lutemax Free Lutein™. Kemin further alleges that OmniActive falsely advertises and falsely marks its lutein products because the company is not practicing its 6,743,953 Patent as claimed and is in violation of the Lanham Act and Florida statutes.

Kemin® – Inspired Molecular Solutions™
Founded in 1961, the Kemin group of companies (http://www.kemin.com) provide health and nutritional solutions to the agrifoods, food ingredients, pet food, human health and pharmaceutical industries. Kemin operates in more than 60 countries with manufacturing facilities in Belgium, Brazil, China, India, Singapore, South Africa, Thailand and the United States.

Kemin Health develops, manufactures and markets specialty ingredients with healthful benefits for the dietary supplement and functional food and beverage markets. Specific to the nutraceutical industry, Kemin Health is credited with successfully commercializing lutein and significantly developing the eye supplement category under the FloraGLO® Lutein brand (http://www.floraglolutein.com), the leading and most researched lutein ingredient brand sold worldwide.